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Judgment
L. Narasimha Reddy, J
Anybody having some idea about service law would find several wonderful things happening in the Municipal Corporations of Delhi. This case presents one such.
Way back in the year 2007 steps were initiated for appointment to the post of Primary Teacher with Post Code No.165/2007. Certain candidates who were working as Teachers on contractual basis, wanted to participate in the process. However, the respondents refused to consider their cases on the ground that they were over aged. A batch of candidates viz Veena Kumari and others filed Writ Petition before the Hon‟ble Delhi High Court which, in turn, was transferred to the Tribunal as TA 23/2011 and disposed of on 30.01.2012. The prayer for age relaxation in terms of judgment of the Hon‟ble Delhi High Court in Writ Petition No.7297/2007 was turned down. However, a direction was issued to the effect that the contractual employees shall be treated as departmental candidates and be given age relaxation to the extent admissible under the relevant regulations. It was also directed that in case the applicants therein are found eligible, they shall be appointed as Teachers with consequential benefits. Though, no mention was made about any date from which they are to be appointed actually or on notional basis, the respondents had chosen to issue an order dated 23.11.2015 stating that 14 applicants in the said TA, are extended the benefit of notional seniority and notional increment w.e.f. 02.02.2009.
The applicant herein filed OA No.2691/2012 claiming the relief of age relaxation in relation to the same post. The said OA, was disposed on 19.07.2013 along with OA No.1598/12 and 1599/2012. A direction was issued to the respondents to declare the results of the applicants by giving them the benefit of relaxation of age. It is stated that the applicant has since been appointed as Teacher(Primary) through order dated 12. 11.2014. This OA is filed with a prayer to direct the respondents to extend the benefit of seniority and increment to the applicant w.e.f. 02.02.2009.
We heard Shri M. Rais Farooqui, learned counsel for the applicant, at length, at the stage of admission.
The direction issued in TA No.23/2011 reads as under:-
"11. In view of the above position, in our considered view, the applicants herein are not entitled for age relaxation in terms of the judgment of the Hon‟ble High Court in WP (C) No. 7297/2007 (supra). But, being contractual employees under the MCD, they are entitled to be treated as departmental candidates and they have to be given age relaxation to that extent as admissible to regular employees of MCD and the respondents shall consider their candidature afresh.
We, therefore, direct the respondents to examine the cases of each of the applicants and if they come within the purview of the aforesaid judgment of the Apex Court in Dr. Jamuna Kurup (supra), they shall be given age relaxation and those who fulfill that condition and otherwise found suitable shall be given appointment as Teacher (Primary) with all consequential benefits except back wage at the earliest and in any case within a period of two months from the date of receipt of a copy of this order. No order as to costs."
Nowhere it was mentioned that the appointments, if made, shall have retrospective effect. However, the respondents have chosen to issue order dated 23. 11.2015 which reads as under:-
"South Delhi Municipal Corporation Education Department: HQ Dr. Shyama Prasad Mukherjee Civic Centre E-Block, 23rd Floor, JLN Marg, N. Delhi-02 No.D/ADE/Admn./Edu./HQ/2015/4803 Dated 23/11/15 In compliance of Hon‟ble Central Administrative Tribunal ordered dated 30.01.2012 passed in the matter of Veena Kumari & Ors. Vs. DSSSB and Anr., TA No.23/2011 the notional seniority and notional increment of the following Teachers (Primary) will be fixed w.e.f. 02.02.2009 under post code 165/2007 and their pay be fixed accordingly.
S. No.
Name
Applicant No.
Fathers Name
Zone
School Name
Address
1.
Veena Kumari
1
Parmeshwar Prasad Singh
Karol Bagh Zone
MCPS H‟ Block Naraina Vihar
35/3, Uri Enclave, Near Brar Square, Delhi Cantt, New Delhi10
2.
Mamta
2
R.K. Dhingra
Civil Line
MCPS
Delhi seeds
Zone
Sukurpur G-1st
and Pesticides 121, Village Bharolla, New Sabzi Mandi, Azadpur New Delhi
3
Alka Manral
4
Ishwar Chand Jain
Najafgarh Zone
MCPS Dwarka Sec-1st
C-102/2, Sadh Nagar, Palam Colony, New Delhi
5.
Preeti Gupta
5
Vijay Kumar Gupta
Shahdara (South)
MCPS Marginal Bandh New - 1st
4/2979-B, Street No.3, Shalimar Park Extension, Shahdra, Delhi
6.
Mamta Aggarwal
7
B.S. Mittal
Civil Line Zone
MCPS Kewal Park
B-36, Majlis Park, Main Road, Delhi-33
7.
Ravinder Kumar
9
Ram Kishan
Shahdara (North)
MCPS Joyti Colony-IInd
A-32, Shera Mohalla, Vill., Garhi Lajpar Nagar, New Delhi
8.
Rajiv Kumar
10
Fateh Singh
West Zone
MCPS D1- A, Janakpur
RZ-5A/1, Shankar Park, West Sagar Pur, New Delhi.
9.
Renu
12
Mukh Ram Singhal
Civil Line Zone
Majlish Park - 1st
B-203, Siv Vihar, Rohtak Road, New Delhi-87
10.
. Renu Kumari
13
Kishan Chand
Civil Line Zone
MCPS Devaram Park
3584, Street No.5, Narang Colony, Tri Nagar, Delhi-35
11.
. Mukesh Bala
14
Jai Kishan Gahlot
Narela Zone
MCPS Begumpur1st
RZ-B-256, Gopal Nagar, Najafgarh, New Delhi43
12.
Mujesh Bala
15
Jai Kishan Gahlot
Narela Zone
MCPS Nagloi Main-IInd
RZ-B-256, Gopal Nagar, Najafgarh, New Delhi43
13.
Neetu
16
Om Prakash
Civil Line Zone
MCPS Timarpur-1
22, New Market, Timarpur, New Delhi54
14.
Veena
17
P.C. Mohanpuria
Karol Bagh Zone
MCPS Bapa Nagar- 1st
H-19/66, Sec-7, Rohini, New Delhi-85
They will be entitled for notional seniority, increments and others applicable benefits etc. as admissible to their batch mates of post code 165/2007. They will not be eligible for back wages. The above said pay fixation is subject to final clearance from Audit.
This issues with the prior approval of competent authority."
Things would have been different altogether had there been a specific direction in the OA filed by the applicant regarding the date of appointment or date of commencement of seniority. The direction issued in the said OA reads as under:-
"15. In view of the above position, all the three OAs are allowed. Respondents are directed to declare the results of the applicants by giving them relaxation in age and offer appointments as Teacher (Primary) within a period of three months from the date of receipt of a certified copy of this order, provided they fulfil all other eligibility conditions and are found fit for such appointments. No costs."
It is clear that no mention was made about the retrospective appointment or the date with reference to the reckoning of seniority or fixation of pay scale. If the applicant was of the view that she is entitled to certain reliefs, it was obligatory on her part to claim them in that very OA. Assuming that such relief was claimed, it is deemed to have been rejected. Either way, the principle of res judicata or constructive res judicata, as the case may be, comes into play.
We do not find any merit in the OA, and it is dismissed accordingly. There shall be no order as to costs.